District Court Abused Its Discretion When It Rejected Plea Agreement Because It Contained Appeal Waiver

US v. Vanderwerff, No. 13-1227 (10th Cir. 2015): District court abused its discretion in rejecting defendant's first plea agreement because it included an appeal waiver. Defendant was charged with child pornography offenses. His first plea agreement limited defendant's sentencing exposure to 5-10 years. It included an appeal waiver and the other usual waivers. The district court rejected the plea agreement because it included the appeal waiver, reasoning appeal waivers should be included only when justified by the circumstances and facts of the particular case, and such circumstances were not present here. Subsequently, the parties negotiated a new agreement, that did not include the appellate waiver and that was otherwise worse for the defendant, especially in that his sentencing exposure was now five to 20 years. He ended up with a sentence of 108 months. On appeal, the parties and court-appointed amicus counsel all agreed the district court abused its discretion. The Tenth agreed. The district court misread Laffler and Booker when it concluded those cases to justify rejection of the appellate waiver. 18 USC 3553 is also inapplicable; it applies to imposition of sentence and not to the entry of guilty plea. The district court failed to properly defer to the government's prosecutorial discretion in fashioning plea agreements. And the Tenth reminded everyone that it and the Supreme Court likes and approves of plea bargaining and appellate waivers. No one asked for harmless error analysis, so the Tenth did not go there. The Court vacated the judgment and remanded to allow the defendant to withdraw his guilty plea, and (presumably) get back his original plea offer (thought the Court did not specifically order that result).

Condition Restricting Computer Use Upheld

U.S. v. Ullmann, 2015 WL 3559221 (6/9/2015) (KS)(Published): The panel approves a district court’s supervised release condition that imposes “restrictions and/or prohibitions to: computer and Internet use.” Ullman was convicted of making a false statement in violation of 18 U.S.C. § 1001. The charge arose from sexually explicit written conversations between Ullmann and an undercover FBI agent posing online as a thirteen-year-old minor. The panel said that normally this language standing alone would impermissibly impose a greater deprivation of liberty than reasonably necessary because it suggests the Probation Office may completely ban a means of communication that has become a necessary component of modern life. However, the district court limited the condition at issue in an oral pronouncement, clarifying that it was restricting, not prohibiting, Ullmann’s use of the Internet and Internet-capable devices. The oral pronouncement trumps the written order and saves the condition. Besides, remarks the panel, the district court said it was retaining its decision making authority and merely asking that probation carry out its directives. The panel added that it discourages future appeals challenging the “restrictions and/or prohibitions” language. Such appeals would not be “a valuable use of our limited judicial resources.”

Position Announcement - Investigator, Albuquerque FPD Office

The office of the Federal Public Defender is now accepting applications for the position of Investigator. One position is available with a salary range of JSP 11-14, $58,562 - $128,223. The closing date is July 17, 2015.

Position Description: An Investigator must be able to perform duties and responsibilities, such as: conducting interviews to corroborate reports and facts already contained or presented in records, discovery material, or various other formats; locating facts witnesses and experts; conducting open ended interviews with witnesses and other sources of information to explore and develop new facts and information; initiating new areas of investigation after being assigned the case and discussing it with the attorney; gathering records; locating, viewing, and retrieving tangible evidence, personal property, and other relevant items; photographing crime scenes and evidence; maintaining filing and information reference systems; writing comprehensive descriptive reports of work done; and testifying effectively in federal court proceedings. An Investigator must have the ability and willingness to accept responsibility, and to use initiative, ingenuity and resourcefulness. Knowledge of computer applications is required. Working knowledge of the criminal justice system is required. Regular, out-of-town, overnight travel throughout the State of New Mexico is required. An Investigator also must perform all other duties as assigned.

Qualifications: Applicants must have a high school degree or equivalent and the requisite experience. Qualified applicants must possess a minimum of six years (three years general plus three years specialized) investigative experience. Education above the high school level in accredited institutions may be substituted for general experience. The selected candidate will be subject to a background check as a condition of employment.

Spanish proficience preferred. Applicants may be given a Spanish proficiency test.

Position subject to availability of funding.

Applicants interested in the position, please e-mail your resume and three references to:

Stephen P. McCue, Federal Public Defender
zzNMml_HR@fd.org

No phone calls please.

*The Federal Public Defender is an Equal Opportunity Employer*

eVouchers on the Horizon

The Tenth Circuit today announced:

In July 2015 (exact date to be determined), the U.S. Court of Appeals for the Tenth Circuit will transition from our current, paper based system for processing Criminal Justice Act ("CJA") vouchers to eVoucher, a nationally supported, web based application for managing CJA appointments and processing CJA vouchers.

The implementation of eVoucher will obviate the need for CJA counsel in Tenth Circuit appeals to submit the paper vouchers, documentation, and the related Microsoft Excel workbook that are currently required. Instead, counsel will enter their time and expenses, and submit their vouchers and supporting documentation, via eVoucher, which will route the vouchers to the court for review, approval and payment. Later this summer, eVoucher will be integrated with the federal judiciary's CJA payment system, which will allow payment to occur via electronic funds transfer, thereby decreasing the amount of time between approval of a voucher and counsel's receipt of the resulting payment.

At the time that eVoucher is implemented, all pending CJA appointments in Tenth Circuit appeals will be entered into eVoucher by Clerk's Office staff, and all vouchers must be submitted by counsel via eVoucher. To be clear, the implementation at issue in this email affects only appellate CJA appointments and appellate CJA vouchers for Tenth Circuit appeals; implementation of eVoucher in the U.S. District Courts within the Tenth Circuit will be coordinated by the individual district courts.

In the coming weeks, you will receive additional emails regarding the exact date for implementation of eVoucher; your eVoucher account information; and eVoucher reference materials and training opportunities. If you are interested in learning more about eVoucher right now, some introductory materials have been posted to the Tenth Circuit website: http://www.ca10.uscourts.gov/cja/evoucher.

Please do not hesitate to contact me with any questions or concerns. Thank you in advance for your patience and cooperation as we work towards a smooth implementation that will improve the affected processes for everyone involved.

Chris Wolpert
Chief Deputy Clerk
U.S. Court of Appeals for the Tenth Circuit
1823 Stout Street
Denver, CO 80257
Tel: (303) 335-3077
Chris_Wolpert@ca10.uscourts.gov

Restitution reversed, but loss calculation affirmed

U.S. v. Alisuretove, 2015 WL 3541213 (6/8/15)(Published) - The Tenth Circuit panel reverses the district court's restitution order under the Mandatory Victims Restitution Act. Mr. Alisuretove pled guilty to a conspiracy offense which the indictment limited to five financial institutions. In calculating restitution, however, the presentence report and the district court treated the offense as an unlimited wire fraud conspiracy. No supporting factual findings were made and the record did not show whether additional financial institutions were directly and proximately harmed by the wire fraud committed on the five financial institutions listed in the indictment. Further, the record did not show whether losses on which restitution was ordered were incurred as a result of criminal acts committed within the time frame of the charged conspiracy. Consequently, the Tenth remands for resentencing with respect to restitution.

The district court's calculation under U.S.S.G. § 2B1.1(b)(1) of the amount of loss associated with Mr. Alisuretove's conspiracy conviction--including loss resulting from co-conspirators' placement of skimming devices on convenience store gas pumps to obtain debit card info--is affirmed. The Guidelines provide that a defendant involved in a joint criminal undertaking may be held responsible for relevant conduct that includes all reasonably foreseeable acts of his co-conspirators to further the conspiracy. And by pleading guilty to conspiracy, Mr. Alisuretove admitted to all material facts alleged in the charge.

Position Announcement-AFPD, Las Cruces, NM

The Federal Public Defender for the District of New Mexico is seeking a full time, experienced trial attorney for the branch office in Las Cruces. Federal salary and benefits apply.

Applicant must have one year minimum criminal trial law experience, be team-oriented, exhibit strong writing skills as well as a commitment to criminal defense for all individuals, including those who may be facing the death penalty. Spanish fluency is preferred. Writing ability, federal court, and immigration law experience will be given preference. Membership in the New Mexico Bar is required within the first year of employment. The private practice of law is prohibited.

Selected applicants will be subject to a background investigation. The Federal Public Defender operates under authority of the Criminal Justice Act, 18 U.S.C. § 3006A, and provides legal representation in federal criminal cases and related matters in the federal courts. The Federal Public Defender is an equal opportunity employer. Direct deposit of pay is mandatory.

Please submit a statement of interest and detailed resume of experience, including trial and appellate work, with three references to:

Stephen P. McCue
Federal Public Defender
111 Lomas Blvd. NW, Suite 501
Albuquerque, NM 87102

Writing samples will be required only from those selected for interview

Applications must be postmarked by July 10, 2015. Position will remain open until filled and is subject to availability of funding.

Unpublished Decisions

U.S. v. Jackett, 2015 WL 2263700 (5/15/15) (Wyo.) (unpb'd) - A good categorical-approach, controlled-substance offense case. The 10th holds that § 4B1.2(b)'s definition of "controlled substance offense" includes possession of a non-controlled substance only if the intent of the possession is to manufacture a controlled substance. So, Mr. Jackett's conviction for 21 U.S.C. § 843(a)(6) did not necessarily constitute a controlled substance offense because the offense could be committed just by knowing or having reasonable cause to believe the substance would be used to manufacture a controlled substance. The district court erred by not applying the modified categorical approach to determine whether the jury in Mr. Jackett's prior case necessarily found he had the requisite intent.

U.S. v. Gutierrez-Carranza, 2015 WL 2239212 (5/14/15) (Okl) (unpub'd) - Imposing a supervised release term on an alien reentry defendant was substantively reasonable, despite the guidelines' preference for no such thing, § 5D1.1(c). The guideline, § 5D1.1, n. 5, says supervised release might be appropriate if it adds a measure of deterrence and protection based on the circumstances of a particular case. Here deterrence and public protection are served where .Mr. Gutierrez-Carranza's wife and children live in the U.S., he defied a prior deportation order and he had a violent criminal history.

U.S. v. George Allen, 2015 WL 2263690 (5/15/15) (N.M.) (unpub'd) - The 10th holds a supervised release condition precluding possession of sexually explicit material involving adults is reasonably related to Mr. Allen's child pornography affinity and no greater deprivation of liberty than reasonably necessary for § 3553(a) purposes. The 10th stresses how attracted to child porn Mr. Allen is.

U.S. v. Brian Allen, 2015 WL 2263701 (5/15/15) (Wyo.) (unpub'd) - Mr. Allen's gang affiliation was admissible to provide relevant context, the 10th says. It explained why Mr. Allen wanted to kidnap the victim and possessed a gun to accomplish it - the victim had claimed to be part of Mr. Allen's gang, which I guess was a bad thing to do - and why Mr. Allen's buddy would help him kidnap the victim - the friend was a member of Mr. Allen's gang. The gang evidence was "an integral and natural part" of the witnesses' accounts to establish Mr. Allen, a felon, possessed a firearm. No 403 problem here because the evidence was probative and restricting the evidence and providing a limiting instruction reduced the prejudice.

Helfferich v. Marcantel, 2015 WL 2239083 (5/14/15) (N.M.) (unpub'd) - No liability where Mr. Heifferich alleged officers transported him from one state facility to another for 9 hours in a hot, poorly-ventilated transport vehicle with 11 other inmates without a restroom break while the vehicle was driven carelessly. The allegations did not rise to the level of unnecessary and wanton infliction of pain necessary to implicate the 8th Amendment.

Tenth Takes Broad View of Permissible Questioning During Routine Traffic Stop

U.S. v. Pettit, 2015 WL 2217115 (5/13/15) (Ut.) (Published) - A bad, post-Rodriguez traffic stop case. The 10th says without qualification that an officer may inquire about a driver's travel plans and matters unrelated to the stop. Hopefully, subsequent 10th Circuit panels and district courts don't take this literally. Other 10th cases, including the ones the 10th cites, limit these questions somewhat. "Unrelated" questions are okay only when the officer is waiting for some response or while otherwise conducting some stop-related activity like writing up the citation, i.e., not extending the duration of the stop with the questions. The 10th also says "generally" an officer may request consent to search luggage.

Nonetheless, the 10th does acknowledge Rodriguez says the stop may not be extended beyond the time reasonably required to effectuate the stop's purpose. When the officer finished the traffic citation and returned to Mr. Pettit's car, the stop's initial purpose was satisfied. From that point on, the officer needed reasonable suspicion to continue the detention, which the officer continued by retaining Mr. Pettit's documents.

No problem. There was reasonable suspicion because: (1) there were specific indicia that Mr. Pettit's nervousness was extreme; his lower body was moving nervously, his whole arm shook when he handed over the license; and most importantly Mr. Pettit said twice within the first 25 seconds of the stop that the officer made him nervous. The 10th dismissed the notion, mentioned in other 10th Circuit cases that it would be hard for an officer to know if a person was extra nervous when the officer had no previous acquaintance with the defendant; such a theory would eliminate nervousness as a factor, it didn't matter that Mr. Pettit could have been shaken by a "snow burst" he and the officer had just gone through, innocent explanations are essentially beside the point; (2) Mr. Pettit was driving a car that was not his, which can indicate drug trafficking, and had unusual, though perhaps not implausible, travel plans, i.e., he flew to California from Kansas and was driving a friend's car back to Kansas, which was consistent with the travel plans of a drug courier, while the plans were not enough for reasonable suspicion by themselves, they were worthy of consideration; and, perhaps most importantly, (3) Mr. Pettit had two suspended licenses, which "are usually suspended for less than law abiding conduct" and which made it less likely he would have volunteered to help a friend transport a car across the country alone rather, he would drive across country only if he were well compensated for carrying drugs; and the trooper had to ask for Mr. Pettit's license twice and Mr. Pettit passed over one license and produced one labeled "nondriver." Mr. Pettit questioned why the suspended licenses would be such a big deal when the 10th has cautioned about using prior criminal convictions; but the 10th was unperturbed, noting it was considering the license factor in combination with the other factors. While factors weighing against reasonable suspicion must be considered, the 10th says, the officer's failure to find any contraband when he searched Mr. Pettit's luggage for a minute was entitled to "little weight." In totality: reasonable suspicion.

Tenth Deems Extra Language in Indictment to be "Mere Surplusage," and Court's Failure to Instruct on it was not Error

U.S. v. Mann, 2015 WL 2342861 (5/18/15)(Published) - The Tenth rejects the argument that the district court committed plain error by constructively amending the indictment on an 18 USC § 924(c) count. The government agreed there was plain error but contested the third (substantial prejudice) and fourth prongs (seriously affected the fairness, integrity or reputation of judicial proceedings) of the plain error standard. The Tenth finds there was no constructive amendment and, therefore, no error at all. The indictment charged Mr. Mann "did knowingly discharge and carry a firearm . . . during and in relation to" a specified assault resulting in serious bodily injury. The jury was instructed that Mr. Mann was guilty if he "used or carried a firearm during and in relation to" the assault, omitting the element of "discharge." At trial, Mr. Mann did not contest the fact that he had discharged the weapon. He did argue, however that he did so mistakenly. In light of evidence that Mr. Mann mistakenly shot the assault victim, the jury found him not guilty on the charge of assault with intent to do bodily injury with respect to the victim. The defense argued on appeal that the district court constructively amended the indictment by failing to instruct the jury that it needed to find Mr. Mann "knowingly" discharged his firearm "in relation to" the charged assault. The Tenth concludes there was no error because the indictment would have been adequate under Alleyne, which requires the jury to find "discharge" of the weapon, if it had omitted the "knowingly" and "during and in relation to" language, stating: "[T]he charged but uninstructed language was mere surplusage to the true elements of the crime."

Position Announcement -- Assistant Federal Public Defender, Las Cruces, NM

The Federal Public Defender for the District of New Mexico is seeking a full time, experienced trial attorney for the branch office in Las Cruces. Federal salary and benefits apply.

Applicant must have one year minimum criminal trial law experience, be team-oriented, exhibit strong writing skills as well as a commitment to criminal defense for all individuals, including those who may be facing the death penalty. Spanish fluency is preferred. Writing ability, federal court, and immigration law experience will be given preference. Membership in the New Mexico Bar is required within the first year of employment. The private practice of law is prohibited.

Selected applicants will be subject to a background investigation. The Federal Public Defender operates under authority of the Criminal Justice Act, 18 U.S.C. § 3006A, and provides legal representation in federal criminal cases and related matters in the federal courts. The Federal Public Defender is an equal opportunity employer. Direct deposit of pay is mandatory.

Please submit a statement of interest and detailed resume of experience, including trial and appellate work, with three references to:

Stephen P. McCue
Federal Public Defender
111 Lomas Blvd. NW, Suite 501
Albuquerque, NM 87102

Writing samples will be required only from those selected for interview

Applications must be postmarked by July 10, 2015. Position will remain open until filled and is subject to availability of funding.